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United States of America v. andre Ware

January 6, 2012

UNITED STATES OF AMERICA
v.
ANDRE WARE



The opinion of the court was delivered by: DuBOIS, J.

MEMORANDUM

I. Introduction

On October 14, 2008, defendant Andre Ware was charged in a five-count Indictment with various narcotics and weapons offenses, including three counts related to possession with intent to distribute cocaine base ("crack") (referred to as "crack cocaine").*fn1 Following a jury trial, defendant was convicted of the three narcotics counts, which involved 1.17 grams of crack cocaine.

Presently before the Court are defendant‟s Pro Se Motion for Modification of Sentence Pursuant to Title 18 U.S.C. Sections 3582(c)(2) & 3582(1)(B) and defendant‟s counseled Supplemental Motion to Reduce Sentence Pursuant to 18 U.S.C. § 3582(c)(2). Defendant seeks resentencing based on amendments to the United States Sentencing Guidelines ("USSG") regarding crack cocaine offenses that were promulgated and given retroactive effect after his original sentencing. For the reasons set forth below, the Court concludes that defendant is entitled to a sentence reduction and grants defendant‟s motions.

II. Background

A.Charges

Defendant was charged by Indictment on October 14, 2008, with the following offenses:*fn2

Count One, Conspiracy to Possess with Intent to Distribute Cocaine Base, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(C) (2006) (amended Oct. 15, 2008)*fn3 , 846; Count Two, Possession with Intent to Distribute Cocaine Base, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(C); Count Three, Possession with Intent to Distribute Cocaine Base Within 1,000 Feet of a School, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(C), 860(a); Count Four, Possession of a Firearm in Furtherance of a Drug Trafficking Crime, in violation of 18 U.S.C. § 924(c)(1)(A); and Count Five, Possession of a Firearm by a Convicted Felon, in violation of 18 U.S.C. § 922(g)(1).

The Court held hearings on a motion to dismiss the Indictment on April 28, 2009, and a motion to suppress evidence on May 20, 2009. The Court denied both motions and held a three-day trial that began on August 3, 2009. By agreement of the parties, Counts One through Four were submitted to the jury for consideration, while Count Five was tried to the Court sitting without a jury. On August 5, 2009, the jury returned verdicts of guilty on Counts One, Two, and Three, and a verdict of not guilty on Count Four. The Court entered a verdict of not guilty on Count Five.

B.Guideline Calculation

Prior to sentencing, the United States Probation Office prepared a Presentence Investigation Report ("PSR") that contained the sentencing guideline calculation for defendant pursuant to the United States Sentencing Guidelines ("USSG" or "Guidelines"). All offenses of conviction were grouped together pursuant to USSG § 3D1.2(d).*fn4 Because defendant was convicted of drug trafficking in a protected area, defendant‟s base offense level was eighteen: two plus the offense level applicable to the quantity of controlled substances involving the protected location. USSG § 2D1.2(a). In defendant‟s case, the crack cocaine quantity was 1.17 grams, equivalent to an offense level of sixteen, USSG § 2D1.1(c)(12) (2009 ed.), for a total base offense level of eighteen. The PSR recommended a two-level increase for possession of a dangerous weapon under USSG § 2D1.1(b)(1), but, at sentencing, the Court declined to impose the two-level increase because defendant was found not guilty of the gun offenses. (11/17/09 Tr. 10, 25.)

Based on defendant‟s criminal record, defendant‟s criminal history category was VI. With an offense level of eighteen and a criminal history category of VI, defendant‟s guideline range would have been fifty-seven to seventy-one months‟ incarceration. USSG Ch. 5 pt. A.

At sentencing, the Court next turned to the Chapter Four enhancements. Defendant‟s criminal record made him a Career Offender under USSG § 4B1.1(a).*fn5 Because the maximum statutory penalty to which defendant was subject was forty years, under the Career Offender guidelines, defendant‟s offense level was increased to thirty-four. USSG § 4B1.1(b)(B). The guideline sentence for an offense level of thirty-four with a criminal history category of VI was 262 to 327 months‟ incarceration. USSG Ch. 5 pt. A.

C. Sentencing

At sentencing on November 17, 2009, the Court adopted the guideline calculations from the PSR as outlined above but rejected the two-level enhancement for use of a weapon. (11/17/09 Tr. 9-11.) The Court also made several corrections to defendant‟s biographical information, which were incorporated in the revised PSR. (Id.)

Defendant did not challenge his classification as a Career Offender. (Id. at 12, 20.) However, defendant‟s counsel argued the Court should not impose a Career Offender sentence because approximately ten years passed between three of defendant‟s prior convictions and the instant offense, and during the last five of those years, defendant had regular employment as a hospital orderly. (Id. at 28-31.) The government argued that Career Offender treatment was appropriate notwithstanding the "gap between some of the Defendant‟s most criminally productive years." (Id. at 41.)

Before imposing sentence, the Court observed that the case was "difficult" because it presented, on the one hand, a criminal history "about as high as any defendant . . . who ha[d] stood before [the Court]," and, on the other hand, a "drug quantity [that was] not very significant." (Id. at 44.) The Court then stated:

THE COURT: . . . Under the Career Offender guidelines, you are subject to being sentenced to a term of 262 months . . . to [327] months . . ..

In deciding on an appropriate sentence, I must consider the goals of sentence as directed by Congress . . . .

. . . I think application of the Career Offender Guidelines, as set forth in the Guidelines, that is imposing a sentence in the range of 262 to 327 months, is too much, the punishment is too harsh for the crime. It‟s not necessary to impose a sentence within that Guideline range in order to achieve all of the goals of sentencing.

Had you not been designated a Career Offender, the Guidelines would have been 57 to 71 months. The midpoint of that Guideline range is 64 months, that‟s the sentence you probably would have faced had you [not been designated a Career Offender],*fn6 but because you are a Career Offender I‟m going to have to enhance that Guideline, I‟m going to have to increase it. I‟m going to double it, I‟m sentencing you to 128 months[‟] incarceration, well under the low end of the Career Offender guideline, but certainly a sentence that I think will send the word out, you can‟t deal drugs within 1,000 feet of a school with a criminal record such as yours and expect a Guideline sentence or less. I think a sentence of 128 months accomplishes all of the goals of sentencing, it‟s appropriate punishment, it should deter others . . . . It‟s less than the Government asked for, it‟s less than half of what the Government asked for, but I think it‟s an appropriate sentence and I think it appropriately recognizes . . . your very extensive criminal history.

Without that criminal history, your sentence would have been half of what I impose. (Id. at 47-48 (emphasis added).)*fn7 The Court imposed a sentence of 128 months‟ incarceration on Counts One and Three, to run concurrently. (See Judgment, Doc. No. 118, at 2.)*fn8

D.Fair Sentencing Act of 2010 and USSG Amendments

On August 3, 2010, Congress enacted the Fair Sentencing Act of 2010 ("the FSA"), Pub. L. No. 111-220, 124 Stat. 2372, which, inter alia, modified the penalties for crack cocaine offenses. The FSA authorized the United States Sentencing Commission ("USSC") to amend the USSG to give effect to the FSA on an emergency basis. Id. § 8. Pursuant to this power, the USSC issued Amendment 748. That provision became effective on November 1, 2010, and amended the Drug Quantity Table in USSG § 2D1.1(c) to reflect the revised penalties for crack cocaine ...


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